Levy v Victoria

[1997] HCA 31

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH, GUMMOW AND KIRBY JJ

LAURENCE NATHAN LEVY v THE STATE OF VICTORIA & ORS; FC 97/024, M 42/95
Constitutional law

(1997) 146 ALR 248

31 July 1997
Constitutional law

Constitutional law—Implied freedom of communication on government and political matters—Victorian regulations regulating conduct in duck hunting areas during open season—Range of communications protected by implied freedom—Discussion of State issues of government and politics—Test for determining whether law infringes implication—Validity of regulations. High Court—Practice and Procedure—Leave to intervene—Amicus curiae. Constitution of the Commonwealth. Constitution Act 1975 (Vic). Wildlife (Game) (Hunting Season) Regulations 1994 (Vic).

Orders

ORDER

1. Defendants' demurrer allowed.

2. The plaintiff pay the defendants' costs limited to one day of the hearing.

3. The Commonwealth, New South Wales, Queensland, South Australia and Western Australia pay to the plaintiff and to the defendants a proportion of the costs incurred by each of them to be taxed as between party and party in relation to the proceedings in the High Court, the proportion to be determined by the taxing officer by reference to the time by which the hearing of the matter before the Full Court was extended by submissions made on behalf of those interveners.

4. The corporations described as "the Fairfax interests", Nationwide News Pty Ltd, the Herald and Weekly Times Ltd, and the Seven Network Ltd pay to the plaintiff and to the defendants a proportion of the costs incurred by each of them to be taxed as between party and party in relation to the proceedings in the High Court, the proportion to be determined by the taxing officer by reference to the time by which the hearing of the matter before the Full Court was extended by submissions made on behalf of those interveners.

Decision

BRENNAN CJ

On 7 June 1994 the two personal defendants laid informations charging the plaintiff with summary offences pursuant to the Wildlife (Game)(Hunting Season) Regulations 1994 (Vic)[1] ("the Hunting Season Regulations"). Summonses issued on the informations were returnable before the St Arnaud's Magistrates' Court, Victoria. The plaintiff was charged with three offences of "enter[ing] into or upon a permitted hunting area during prohibited times without holding an authority to do so, in breach of Regulation 5(1)(a) of SR 27 of 1994". The offences allegedly occurred at Donald in the State of Victoria, on 19 and 20 March 1994. Regulation 5 of the Hunting Season Regulations read as follows:

" Entry to permitted hunting area prohibited to certain persons

(1) A person must not enter into or upon any permitted hunting area at any time between the hours of -

(a) 5 pm on Friday, 18 March 1994 and 10.00 am on Saturday, 19 March 1994; or

(b) 5 pm on Saturday, 19 March 1994 and 10.00 am on Sunday, 20 March 1994.

Penalty: 10 penalty units.

(2) Sub-regulation (1) does not apply to a person who is the holder of a valid game licence authorised for the hunting or taking of game birds (including duck)."

Regulation 2 stated that the Hunting Season Regulations were made under s 87 of the Wildlife Act 1975 (Vic) and ss 91 and 99 of the Conservation, Forests and Lands Act 1987 (Vic).

During the prescribed periods and on the occasions charged in the informations, the plaintiff, who was not the holder of a valid game licence, entered upon a permitted hunting area in and around Lake Buloke near the town of Donald where he was intercepted by the personal defendants, interviewed and removed against his will from that area.

The plaintiff commenced proceedings in this Court claiming, inter alia, a declaration that the Hunting Season Regulations were "invalid and inoperative as beyond the powers of the Parliament of the State of Victoria". By his further amended statement of claim, the plaintiff pleaded that he entered the permitted hunting area for the purpose of protesting against the laws of the Victorian Parliament which authorised the holders of valid game licences to shoot game birds, including ducks, and against the illegal shooting of protected species. He further pleaded that his purposes included speaking publicly and protesting about these issues "from an informed and persuasive basis" and being publicly seen, especially on television, to be protesting on these issues and to be rendering aid to and collecting injured game birds or killed or injured birds of protected species. The plaintiff also pleaded that he had the further purpose of ensuring that the people of Victoria should be able to "form or exercise informed political judgments about the stance of the Victorian Government in continuing to support or permit duck shooting". Under the purported authority of the Hunting Season Regulations, the defendants had prevented the plaintiff from pursuing the purposes for which he entered the hunting area during the prescribed periods. The further amended statement of claim pleaded these facts and claimed the protection of implied constitutional freedoms to pursue his purposes. The implied constitutional freedoms were said to be contained in the Constitution of the Commonwealth and in the Constitution Act 1975 (Vic) (the Victorian Constitution).

The defendants demurred to the whole of the further amended statement of claim on the grounds that:

"(a) the provisions of the Wildlife Act 1975 (Vic) pursuant to which the Hunting Season Regulations were made are within the legislative powers of the Victorian Parliament;

(b) the Hunting Season Regulations are within the legislative powers of the Victorian Parliament;

(c) the limitations upon the legislative powers of the Commonwealth Parliament arising by implication from the Commonwealth Constitution have no application to the legislative powers of the Victorian Parliament;

(ca) the Hunting Season Regulations are not invalid by reason of any implied freedom contained in the Commonwealth Constitution or in the Constitution Act 1975 (Vic);

(d) the Hunting Season Regulations do not unreasonably have the purpose or effect of restricting any implied freedom contained in the Commonwealth Constitution or in Constitution Act 1975 (Vic)."

The plaintiff submitted that the constitutionally implied freedom on which he seeks to rely is established by the reasons for judgment in the first two of what have been called "The Free Speech cases": Nationwide News Pty Ltd v Wills[2] and Australian Capital Television Pty Ltd v The Commonwealth[3]. These cases were followed by Theophanous v Herald & Weekly Times Ltd[4] and Stephens v West Australian Newspapers Ltd[5]. In the course of argument on the demurrer on 6 August 1996, the Solicitor-General for Victoria sought leave to reopen these last two cases (which relate to the law of defamation) for further consideration. The matter was then adjourned. The matter was listed for further argument together with Lange v Australian Broadcasting Corporation on 3 March 1997. On the resumed hearing, the plaintiff in the last-mentioned action also sought leave to reopen the decisions in Theophanous and Stephens. The Attorneys-General of the Commonwealth, the States and Territories (other than Tasmania and the Australian Capital Territory) intervened and a number of other interested persons then sought leave to intervene in both proceedings. Leave to intervene subject to conditions was given to all who applied except the Media, Entertainment and Arts Alliance. The Alliance was given leave to appear amicus curiae. Leave was also given to the Australian Press Council as an amicus to file written submissions.

Below I state my reasons for joining in the decision to grant conditional leave to intervene and to admit the written submissions of the amicus. Suffice for the moment that the submissions of the interveners who were granted leave and the written argument of the amicus favoured the notion of a constitutionally protected freedom of speech which would afford a constitutional defence to actions for defamation in matter published in the course of political discussion. However, the present case was not concerned with the law of defamation. It raised for determination other issues arising under either the Constitution of the Commonwealth or the Constitution of Victoria. It is convenient first to consider the issues arising under the Constitution of the Commonwealth.

A. Issues under the Commonwealth Constitution

The first issue was the range of conduct that might be protected by the freedom to discuss government and politics which, in one form or another, the several judgments in Nationwide News and ACTV hold to be implied in the Constitution. The second was whether the freedom extended to the discussion of State issues of government and politics. And the third was the test for determining the validity of a law which affected the freedom but which also served another and legitimate purpose.

1. The conduct protected by the implied freedom

Speech is the chief vehicle by which ideas about government and politics are communicated. Hence it is natural to regard the freedom of communication about government and politics implied in the Constitution as a freedom of speech. But actions as well as words can communicate ideas. In the United States where "freedom of speech" is protected by the First Amendment of the Constitution, non-verbal activity which expresses ideas may be protected as a form of speech[6]. Thus a "protest by silent and reproachful presence"[7] or by a burning of the flag of the United States[8] have been held to be protected by the First Amendment. However, American decisions on the protection of "expressive activity" under the First Amendment must be viewed with caution in the context of our Constitution[9]. The freedom of discussion implied in the Constitution of the Commonwealth, unlike the subject of protection under the First Amendment of the United States Constitution, does not require consideration of the connotation of "speech" or of the conduct which might be thought to constitute a form of "speech". The implication denies legislative or executive power to restrict the freedom of communication about the government or politics of the Commonwealth, whatever be the form of communication, unless the restriction is imposed to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose[10]. In principle, therefore, non-verbal conduct which is capable of communicating an idea about the government or politics of the Commonwealth and which is intended to do so may be immune from legislative or executive restriction so far as that immunity is needed to preserve the system of representative and responsible government that the Constitution prescribes.

Televised protests by non-verbal conduct are today a commonplace of political expression. A law which simply denied an opportunity to make such a protest about an issue relevant to the government or politics of the Commonwealth would be as offensive to the constitutionally implied freedom as a law which banned political speech-making on that issue. However, while the speaking of words is not inherently dangerous or productive of a tangible effect that might warrant prohibition or control in the public interest, non-verbal conduct may, according to its nature and effect, demand legislative or executive prohibition or control even though it conveys a political message. Bonfires may have to be banned to prevent the outbreak of bushfires, and the lighting of a bonfire does not escape such a ban by the hoisting of a political effigy as its centrepiece. A law which prohibits non-verbal conduct for a legitimate purpose other than the suppressing of its political message is unaffected by the implied freedom if the prohibition is appropriate and adapted to the fulfilment of that purpose. Such a law prohibiting or controlling the non-verbal conduct, if it be reasonable in extent, does not offend the constitutional implication.

In the present case, the plaintiff entered upon the proclaimed area and, had he not been removed, he would have stayed there to make a dramatic and televised protest against duck shooting and the laws and policies which permitted or encouraged the practice. He was prohibited from being able lawfully to make that protest and he was removed from the proclaimed area in exercise of an authority arising from the provisions of the Hunting Season Regulations[11]. The conduct in which the plaintiff desired to engage and which was proscribed by the Hunting Season Regulations was calculated to express and was capable of expressing a political message. It was therefore conduct of the kind which, if the criteria presently to be mentioned existed, would be immune from legislative prohibition.

2. The discussion of State issues of government and politics

In Stephens[12], I expressed the opinion that defamatory matter relating to the conduct of members of the Legislative Council was irrelevant to the government of the Commonwealth and, on that account, the lawfulness of its publication was unaffected by the implied freedom. However, a majority of the Court[13] held that the implication protects political discussion in relation to all levels of government including State government. In Lange[14] the joint reasons for judgment extend the defence of qualified privilege to the publication of defamatory matter relating to government and politics at all levels. The factors which have led to that conclusion include the "increasing integration of social, economic and political matters in Australia"[15]. Taking this approach, it is arguable that permitting the shooting of ducks and any inaction with respect to the shooting of protected species affects some international obligation binding on Australia relating to the protection of fauna[16] and thus relates directly to a matter within the legislative competence of the Commonwealth. I would not accept this approach. The plaintiff's intended protest related to the discrete State issue of the appropriateness of the relevant Victorian laws, especially the Hunting Season Regulations. However, I have come to the conclusion that the demurrer must be allowed for a reason which I mention next and I prefer to rest my conclusion on that reason.

3. The test of validity and the facts to be accepted for the purposes of the demurrer

Regulation 5 of the Hunting Season Regulations was made under s 87 of the Wildlife Act 1975 (Vic) which authorises the making of Regulations by the Governor in Council. In making the regulations the provisions of the Subordinate Legislation Act 1962 (Vic) were to be observed. Guideline 6(b) of the Guidelines issued pursuant to s 11 of the Subordinate Legislation Act provided that "[a] statutory rule ... must clearly set out as part of its text ... the objectives of the rule". In conformity with this guideline, reg 1 of the Hunting Season Regulations stated the objectives of the Regulations are to -

"(a) ensure a greater degree of safety of persons in hunting areas during the open season for duck in 1994; and

(b) make amendments concerning the times and dates for the open and close seasons for game duck; and

(c) add further offences to the Schedule of offences in the Conservation, Forests and Lands (Infringement Notice) Regulations 1992."

The provisions of reg 5 of the Hunting Season Regulations were consistent with the objective stated in reg 1(a).

If the prohibition or regulation is reasonably appropriate and adapted to the protection of life or limb there can be no doubt as to its validity. A law which is appropriate and adapted to the fulfilment of that legitimate purpose is not invalidated by limitations of legislative power implied from the terms and structure of the Constitution merely because an opportunity to discuss matters of government or politics is thereby precluded[17].

The permitted hunting areas during the times prescribed by the Hunting Season Regulations were the areas on which duck shooters would be engaged in shooting ducks at the opening of the season. Paragraph 7 of the further amended statement of claim alleged, inter alia, that

"many persons holding a valid game licence entered the proclaimed area during the proclaimed period for the purpose of shooting game birds; did shoot, injure or kill many hundreds of such birds; did illegally fail to immediately kill all injured game birds; did fail to render aid to protected birds which were injured; and further shot injured or killed illegally a number of protected species of birds, being birds protected at all material times".

The statement of claim also alleges that some of the purposes for which the plaintiff entered the prescribed area during the proclaimed period were to protest against the relevant laws by physical presence, to gather information about the activities of duck shooters within that area during that period, to collect injured game birds which shooters had failed to despatch quickly or at all, to collect illegally killed or injured game birds and to prevent or attempt to prevent breaches of the law, being the illegal shooting of protected birds. The risk to life and limb in engaging in those activities in confrontation with the duck shooters seems to demand prohibition or regulation of the activities of shooters or those who would protest against the shooting or both. The pleading of the facts recited in this paragraph is merely evidentiary and must be discarded in deciding the demurrer[18] but they cast no doubt on the assertion in reg 1(a) that the Hunting Season Regulations are a measure calculated to "ensure a greater degree of safety" for persons in the prescribed area.

To repel this view of the operation and effect of the Hunting Season Regulations, the plaintiff points to reg 6 which provides:

" Proximity of persons to hunters restricted in permitted hunting areas

(1) A person must not, at any time during the open season for duck in 1994, approach within a distance of less than 5 metres, any person who is the holder of a valid game licence authorised for the hunting or taking of game birds (including duck) who is hunting or taking game birds, in any permitted hunting area.

Penalty: 10 penalty units.

(2) Sub-regulation (1) does not apply to a person who is the holder of a valid game licence authorised for the hunting or taking of game birds (including duck) who is hunting or taking game birds from the same boat or from the same hide as another person."

This regulation, it is said, indicates the radius of the buffer zone which is necessary for securing the safety of persons who are in the proclaimed area while shooting is taking place. It is submitted that the prohibition on entry into any part of the proclaimed area is unreasonably wide or, at least, may be shown by evidence at the trial to be unreasonably wide. Therefore, so the argument runs, it is impossible to say on demurrer that the wider prohibition contained in reg 5 is appropriate and adapted to the securing of personal safety.

Some analogy is seen in the decision of the Supreme Court of the United States in Schenck v Pro Choice Network of Western New York[19] in which that Court determined the extent of a buffer zone that ought to be maintained between persons entering an abortion clinic and those who picket the clinic in protest. The analogy is attractive unless the different criterion of validity under our Constitution is steadily kept in mind. Under our Constitution, the courts do not assume the power to determine that some more limited restriction than that imposed by an impugned law could suffice to achieve a legitimate purpose. The courts acknowledge the law-maker's power to determine the sufficiency of the means of achieving the legitimate purpose, reserving only a jurisdiction to determine whether the means adopted could reasonably be considered to be appropriate and adapted to the fulfilment of the purpose[20]. Although it is possible that the validity of a law with respect to a subject within legislative power could depend upon some factual matter touching the freedom of discussion of government or politics, questions of fact seldom have to be resolved. Only in rare instances would it be impossible to determine the validity of such a law on demurrer. In such a case, the constitutional facts could first be ascertained by the stating of a case, by resort to information publicly available or, possibly, by the tendering of evidence. But constitutional facts are not to be regarded for the purposes of a demurrer as though they are facts in issue in civil litigation between parties. In the latter case, the facts expressly or impliedly alleged in the pleading demurred to must be taken as established for the purposes of the demurrer[21]. But facts which are relevant to the existence of, or restriction on, power to enact an impugned law stand in a different category[22]. The litigation of constitutional facts is not left in the hands of private litigants[23]. The plaintiff in the present case submitted that evidence at the trial would show, inter alia, that there was no risk to life or limb by entry upon a proclaimed area while duck shooting was proceeding since the shooting of ducks occurs when they are on the wing and the gun is lifted above the level of any human intruder. Even if those facts were established it could not be said that an opinion by the Governor in Council that safety was to be secured by keeping unlicensed persons out of the duck shooting area could not properly have been formed so as to warrant the insertion of the objective stated in reg 1(a) and the making of reg 5.

The further amended statement of claim contains no ground for challenging the truthfulness of the declaration in reg 1(a) that the objective of the Hunting Season Regulations was the ensuring of a greater degree of safety of persons in hunting areas during the 1994 open season. Accepting that objective[24], reg 5 contains provisions that were appropriate and adapted to its fulfilment. It follows that, even if reg 5 had had the effect of impairing a freedom to discuss government or politics implied in the Constitution of the Commonwealth, it was not invalidated by the implication.

B. The Constitution of Victoria

It is unnecessary in the light of the conclusion just stated to consider whether a freedom to discuss government or politics is to be implied in the Victorian Constitution similar to the freedom of that kind implied in the Constitution of the Commonwealth. Even if a freedom of that kind were implied, and even if such a freedom were entrenched, so that it would be beyond the power of the Parliament of Victoria to enact a law or to authorise the making of a regulation inconsistently with it, the impugned regulation in the present case cannot be held invalid on that account. It is not suggested that there can be found in the Victorian Constitution an implication of immunity from legislative or executive action wider than the immunity implied in the Constitution of the Commonwealth. As reg 5 can be supported as reasonably appropriate and adapted to the fulfilment of the legitimate objective stated in reg 1(a), any challenge to its validity based on an implication of a freedom to be found in the Victorian Constitution must fail.

It follows that the demurrer must be allowed.

Intervention

I add my reasons for granting leave to various persons to intervene and for admitting the submissions of amici inthis matter and in Lange v Australian Broadcasting Corporation. Applications for leave to intervene were lodged after the respondent State sought leave to reopen the decisions in Theophanous and Stephens. When an order for removal into this Court of Lange v Australian Broadcasting Corporation - then pending in the Supreme Court of New South Wales - was made and the plaintiff in those proceedings also sought leave to reopen the decisions in Theophanous and Stephens, the hearing of that matter and the adjourned hearing of the present case were listed together. Media proprietors and an industrial association which includes journalists among its members lodged written submissions and delivered oral argument in support of their applications for leave to intervene.

The media proprietors and the journalists' association claimed that, in the period since the judgments in Theophanous and Stephens were published, those decisions were relied on in publishing material which, they aver, would not otherwise have been published for fear of incurring a liability in damages for defamation. If leave to reopen Theophanous and Stephens were given and the holdings of the respective Justices in the majority in those cases were overruled, a ground of defence in some of the pending actions for defamation would be taken away. The immunity from successful suit with which the Constitution as interpreted in Theophanous and Stephens clothed the publication of defamatory matter in the circumstances and subject to the conditions stated in those cases was of especial value to media proprietors and journalists whose business it is to publish material relating to political matters. This factor, together with the role played by the media in political discussion and in the dissemination of political information, was relied on to demonstrate the particular interest of the applicants in the issues for determination on which they sought leave to intervene.

The jurisdiction to allow non-party intervention in these proceedings was not challenged. Nevertheless, the source of the jurisdiction should be identified to ensure that mere convenience or utility does not lead to a wrongful assumption of jurisdiction to allow a non-party to intervene in a matter before the Court. In Earl Cowley v Countess Cowley[25] the Earl of Halsbury LC observed:

"what a curious thing it would be in our jurisprudence if because a thing might be considered convenient, and, I will assume for the sake of argument, desirable, therefore you could invent a new jurisdiction and apply it to a matter with which that Court has no concern whatever."

None of the constitutional or statutory provisions which confers jurisdiction on this Court contains an express grant of jurisdiction to allow non-party intervention save s 78A of the Judiciary Act 1903 (Cth). If there be jurisdiction apart from s 78A to allow non-party intervention, it must be an incident of the jurisdiction to hear and determine the matters prescribed by the several constitutional and statutory provisions which confer this Court's jurisdiction. It is of the nature of that jurisdiction that it should be exercised in accordance with the rules of natural justice[26]. Accordingly, its exercise should not affect the legal interests[27] of persons who have not had an opportunity to be heard[28]. Therefore, a non-party whose interests would be affected directly by a decision in the proceeding - that is, one who would be bound by the decision albeit not a party - must be entitled to intervene to protect the interest liable to be affected. This, indeed, is the explanation of many of the cases in which intervention has been allowed in probate[29] and admiralty[30] cases and in other cases where an intervener and a party are privies in estate or interest[31].

But the legal interests of a person may be affected in more indirect ways than by being bound by a decision. They may be affected by operation of precedent - especially a precedent of this Court - or by the doctrine of stare decisis. Apart from the obsolete exception contained in s 74 of the Constitution, an exercise of the jurisdiction conferred on this Court is not subject to appeal nor to review by any other court. As this Court's appellate jurisdiction extends to appeals, whether directly or indirectly, from all Australian courts, a decision by this Court in any case determines the law to be applied by those courts in cases that are not distinguishable. A declaration of a legal principle or rule by this Court will govern proceedings that are pending or threatened in any other Australian court to which an applicant to intervene is or may become a party. Even more indirectly, such a declaration may affect the interests of an applicant either by its extra-curial operation or in future litigation. Ordinarily, such an indirect and contingent affection of legal interests would not support an application for leave to intervene. But where a substantial affection of a person's legal interests is demonstrable (as in the case of a party to pending litigation) or likely, a precondition for the grant of leave to intervene is satisfied[32]. Nothing short of such an affection of legal interests will suffice. This accords with the view of Dixon J in Australian Railways Union v Victorian Railways Commissioners[33], expressed before s 78A was inserted into the Judiciary Act 1903 (Cth)[34]:

"I think we should be careful to allow arguments only in support of some right, authority or other legal title set up by the party intervening. Normally parties, and parties alone, appear in litigation. But, by a very special practice, the intervention of the States and the Commonwealth as persons interested has been permitted by the discretion of the Court in matters which arise under the Constitution. The discretion to permit appearances by counsel is a very wide one; but I think we would be wise to exercise it by allowing only those to be heard who wish to maintain some particular right, power or immunity in which they are concerned, and not merely to intervene to contend for what they consider to be a desirable state of the general law under the Constitution without regard to the diminution or enlargement of the powers which as States or as Commonwealth they may exercise."

In R v Anderson; Ex parte Ipec-Air Pty Ltd[35] Kitto J said that a State or the Commonwealth seeking leave to intervene had to show that "the decision of the Court can have a bearing, or may have a bearing, upon the legislative or executive powers or other direct interests ... of the State or Commonwealth, as the case may be".

The Court's practice before the enactment of s 78A of allowing intervention by the Commonwealth or the States in constitutional cases was explained by Hutley JA in Corporate Affairs Commission v Bradley[36]:

"[The] constitutional practice is based upon the concept of legislative trespass and the right of the Attorney-General of a State in the case of legislative trespass by the Commonwealth to protect its citizens from such trespass. ... By giving to the Attorneys-General of the States authority to intervene a result is achieved analogous to the results reached in probate by denying to those who can, but do not, intervene the power to bring separate proceedings."

In other words, the Commonwealth and States were seen to have an interest in constitutional cases that satisfied a condition imposed on the grant of leave to intervene. Jurisdiction to grant leave to intervene to persons whose legal interests are likely to be substantially affected by a judgment exists in order to avoid a judicial affection of such a person's legal interests without that person being given an opportunity to be heard[37].

Nevertheless, an indirect affection of legal interests enlivens no absolute right to intervene. The assumption is that the Court will determine the law correctly, so that the indirect affection of an applicant's legal interest is simply the inevitable consequence of the exercise by this Court of its jurisdiction as the final Court in the Australian hierarchy. On that assumption, no undue prejudice is suffered by a person whose interests will be affected by the decision. The exercise of this Court's jurisdiction to determine controversies between parties is not, and could not be, conditioned on allowing intervention by all those whose interests are susceptible to affection by the Court's judgments[38]. Such a condition would virtually paralyse the exercise of that jurisdiction. The principles of natural justice which control the exercise of curial power must take account of the nature of the jurisdiction to be exercised[39].

However, where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceeding may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice as between all parties. In that situation, intervention may prevent an error that would affect the interests of the intervener. Of course, if the intervener's submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied[40].

In Australian Railways Union v Victorian Railways Commissioners[41], Victoria and South Australia were refused leave to intervene in a matter in which the question at issue was the power of the Commonwealth Court of Conciliation and Arbitration to make an industrial award affecting State railways. A factor which influenced Gavan Duffy, Rich and Starke JJ to refuse leave to intervene was that counsel for the parties would put the argument that the States wished to put[42].

The hearing of an amicus curiae is entirely in the Court's discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law[43] or relevant fact[44] which will assist the Court in a way in which the Court would not otherwise have been assisted[45]. In Kruger v The Commonwealth[46], speaking for the Court, I said in refusing counsel's application to appear for a person as amicus curiae:

"As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case. The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced. Where the Court has parties before it who are willing and able to provide adequate assistance to the Court it is inappropriate to grant the application."

It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.

In this case, the media proprietors were able to show that their interests were likely to be substantially affected by the judgment in either this matter or in Lange v Australian Broadcasting Corporation. The Media, Entertainment and Arts Alliance was not able to establish that condition on an application for leave to intervene. On the facts pleaded in the present case, it was far from evident that the arguments relevant to important questions of defamation law, involving a reconsideration of Theophanous and Stephens, would necessarily arise or be adequately put. For these reasons, I favoured the grant of conditional leave to intervene to the media proprietors[47], the refusal of leave to the industrial association and the receipt of written submissions by the amici.

DAWSON J

Under Victorian law, a person with a valid game licence could hunt ducks in permitted hunting areas in that State during the 1994 open season, which ran from late March to early June. A person who did not hold a valid game licence was prohibited by regulation from approaching within a distance of less than five metres on any permitted hunting area during the 1994 open season any person who did hold such a licence[48]. However, most recreational duck shooting occurs in the first weekend of the open season and under the regulations a person not holding a valid game licence was also prohibited from entering any permitted hunting area from before dusk until after dawn the following morning on the first Friday and Saturday of the 1994 open season[49]. To do so was a summary offence and the plaintiff was charged with having done so on three occasions over the course of the weekend.

The plaintiff has for a number of years campaigned against duck shooting in Victoria and he claims to have entered the permitted hunting area in question during the weekend for a number of purposes: to gather evidence of the cruelty associated with duck shooting and of the killing of protected birds by duck shooters; to draw public attention by television coverage and other means to duck shooting; to debate and criticise those policies of the Victorian Government and laws of the Victorian Parliament which permit duck shooting; to be seen rendering aid to and collecting injured birds; to prevent the shooting of protected birds; to protest in general about duck shooting; and to ensure that the people of Victoria could form and exercise informed political judgments about the stance of the Victorian Government in relation to duck shooting.

The plaintiff claims that the regulation under which he was charged prevented him from pursuing these purposes, at least in the way in which he wished to do so, and was invalid because it contravened an implied freedom of communication said to be conferred by the Commonwealth Constitution and the Constitution Act 1975 (Vic). The defendants demurred to the plaintiff's claim and said that the regulation, which fell within the expressed object of ensuring a greater degree of safety of persons in hunting areas during the 1994 open season[50], was within the legislative power of the Victorian Parliament.

The freedom of communication which the plaintiff seeks to establish is said by him to be a requirement of "the concept of representative government which is enshrined in the Constitution"[51]. But it is now clear[52] that the Constitution does not incorporate any concept of representative government other than can be identified in the provisions of the document itself. It is not helpful to ask what is required by representative government. The relevant question must always be what form of government does the Constitution require and that inquiry leads to those provisions which provide for a parliament comprised of elected representatives directly chosen by the people, namely, ss 1, 7 and 24. It is then possible to discern the manner in which and the extent to which the Constitution affords protection to freedom of communication. Thus, in Lange v Australian Broadcasting Corporation[53] it was said that:

"ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors."

Sections 7 and 24, together with ss 1, 8, 13, 16, 25, 28 and 30, provide the minimum requirements of a system of representative government but do not purport to go significantly further. Those minimum requirements were identified by Stephen J in Attorney-General (Cth); Ex rel McKinlay v The Commonwealth[54] as being "the enfranchisement of electors, the existence of an electoral system capable of giving effect to their selection of representatives and the bestowal of legislative functions upon the representatives thus selected". However, ss 7 and 24 provide that members of the Commonwealth Parliament be directly chosen by the people, in the case of the Senate by the people of each State and in the case of the House of Representatives by the people of the Commonwealth. The choice required by ss 7 and 24 is to be made at periodic elections[55] and the choice of which those sections speak is necessarily a true or genuine choice with "an opportunity to gain an appreciation of the available alternatives"[56]. It follows that in speaking of elections, the Constitution is speaking of free elections which can only occur where there is freedom of communication about those matters which may properly influence the outcome of the elections[57]. The required freedom of communication is not confined to election periods and extends to all matters of government and politics.

The freedom is often said to be implied in the Constitution but I do not think that it really is. The Constitution speaks in terms of representatives being directly chosen by the people at periodic elections, and to say that those words require free elections is to construe them in context. Admittedly, the line between construing the text and making implications from it is not always easy to draw. But, in any event, the freedom of communication which is protected by the Constitution is that which everyone has in the absence of laws which curtail it and that freedom does not find its origins in the Constitution at all, either expressly or by implication. Even if the inhibition against laws preventing free elections is to be seen as arising by implication, that implication is of a negative nature and the freedom involved is a residual freedom owing its existence to a restriction upon legislative power. What is clear is that the freedom does not rest upon an implication drawn from any underlying or overarching concept of representative government.

It should be added that s 128 of the Constitution, in prescribing a procedure by way of referendum for submitting a proposed constitutional amendment to the electors for their approval or disapproval, precludes laws which would prevent that choice being free and informed.

The Constitution does not erect a guarantee of freedom of communication in the same way as it erects a guarantee of freedom of interstate trade under s 92. There the freedom is expressed to be absolute and, faced with the impossibility of absolute freedom in that context, the Court is required to balance that freedom against those other interests in an ordered society which must be recognised by the law. Sections 7 and 24 and related sections require free elections and the question for the Court in a case such as this is whether the impugned law precludes the holding of elections of that character.
It is, of course, possible to approach the matter in more than one way. In Lange v Australian Broadcasting Corporation[58] it was suggested that two questions must be answered:

"First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people ... If the first question is answered 'yes' and the second is answered 'no', the law is invalid."

There can be no objection to approaching the matter in this way, provided that it is borne in mind that, putting to one side the situation under s 128, the ultimate question is whether the law is compatible with the elections which the Constitution requires. It is in those elections that the representative government and, ultimately, the responsible government for which the Constitution provides find their source. As I have said, the circumstances of those elections must be such as to enable the people to make a free and informed choice. In other words, they must be free elections.

Free elections do not require the absence of regulation. Indeed, regulation of the electoral process is necessary in order that it may operate effectively or at all. Not only that, but some limitations upon freedom of communication are necessary to ensure the proper working of any electoral system[59]. Apart from regulation of the electoral process itself, elections must take place within the framework of an ordered society and regulation which is directed at producing and maintaining such a framework will not be inconsistent with the free elections contemplated by the Constitution notwithstanding that it may incidentally affect freedom of communication. In other words, the freedom of communication which the Constitution protects against laws which would inhibit it is a freedom which is commensurate with reasonable regulation in the interests of an ordered society.

The regulation of which the plaintiff complains may on its face be regarded as reasonable in the interests of an ordered society in that, considered in the light of its objective of achieving a greater degree of safety of persons in hunting areas during the open season for duck in 1994, it is clearly concerned with the maintenance of order in a situation where the interests of duck shooters and others who would be present in hunting areas (and they would most likely be protesters) may conflict. Whilst the plaintiff may have been prevented from making his protest in a manner which would have achieved maximum publicity and to that extent the regulation in question may have curtailed freedom of communication to a degree, it was to a degree which was reasonable in an orderly society and hence consistent with the free elections which the Constitution requires.

Adopting the test which was posited in Lange v Australian Broadcasting Corporation[60], it may be assumed that the regulation burdened freedom of communication, but it was appropriate and adapted to serve the legitimate end of ensuring the safety of persons with conflicting aims who would be likely to be present in the vicinity of duck shooting at the opening of the 1994 season.

Notwithstanding that the regulation of which the plaintiff complains was a Victorian regulation, he chose to base his argument principally upon the freedom of communication which is protected by the Commonwealth Constitution, being content to say that the Constitution Act 1975 (Vic) affords freedom of communication of the same kind and to the same extent. That being so, it is unnecessary to enter upon any examination of the provisions of the Constitution Act, for the result which they produce could, upon the plaintiff's argument, be no different from the result under the Commonwealth Constitution.

For these reasons, I would allow the demurrer.

TOOHEY AND GUMMOW JJ

This is a demurrer to a further amended statement of claim in which the plaintiff seeks in this Court a declaration of the invalidity of certain regulations made under legislation of the State of Victoria. The regulations create summary offences. The plaintiff has been charged by summons issued out of a magistrates court with offences allegedly committed on 19 and 20 March 1994. In this Court, the State is the first defendant and the second and third defendants are police officers who were the informants in respect of the charges.

The plaintiff contends that the regulations in question are invalid, being beyond the powers of the Parliament of the State "by reason of implied freedoms contained in the Commonwealth Constitution and in the Constitution Act 1975 (Vic)" ("the State Constitution Act"). The original jurisdiction of this Court is attracted by s 30(a) of the Judiciary Act 1903 (Cth), the action being a matter arising under the Constitution or involving its interpretation.

The plaintiff relies upon propositions which he submits may be derived from the decisions of this Court in Nationwide News Pty Ltd v Wills[61], Australian Capital Television Pty Ltd v The Commonwealth ("ACTV")[62], Theophanous v Herald & Weekly Times Ltd[63] and Stephens v West Australian Newspapers Ltd[64].

The defendants delivered a defence and demurrer[65]. The defendants support the demurrer on various grounds. It will be necessary to deal only with the first of these. This is that, on any view of the scope of the authorities upon which the plaintiff relies, the regulations and the legislation pursuant to which they were made are not rendered invalid. The legislation in question is the Wildlife Act 1975 (Vic) ("the Wildlife Act"). In his further submissions on the nature of the demurrer, the plaintiff says that he makes "no allegation against the provisions of the Wildlife Act". His attack is confined to particular regulations made thereunder.

For the purpose of argument in this case, the defendants assume that the power of the Victorian legislature to enact laws which impede freedom of discussion or communication[66] of matters of public concern at the State level is subject to the limitations propounded in the authorities and that those limitations arise from either or both the Constitution or the State Constitution Act. However, the defendants correctly submit that what was classified in the authorities as the constitutional freedom has not been treated as conferring an absolute or uncontrolled licence[67]. The defendants further submit that the regulatory regime of which the plaintiff complains involves no significant curtailment of the constitutional freedom and strikes a reasonable balance with the public interest in personal safety[68].

In this way, the defendants assume on their demurrer the burden of making good the proposition that, even if the regulations would otherwise fall foul of the constitutional limitations with respect to freedom of discussion or communication, the reasonable balance which they strike saves them from invalidity. The test for invalidity in these circumstances was stated in Lange v Australian Broadcasting Corporation[69] in the following terms:

"When a law of a State or federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication ... two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?[70] Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government ... If the first question is answered 'yes' and the second is answered 'no', the law is invalid."

The plaintiff was charged with offences against pars (a) and (b) of reg 5(1) of the Wildlife (Game) (Hunting Season) Regulations 1994 (Vic)[71] ("the Regulations"). Regulation 1 is an important provision. It states the objectives of the Regulations. The purpose, as well as the operation and effect, of the particular law have been treated as elements in the assessment of whether a law curtails freedom of political communication or discussion in a manner and to an extent which is consistent with the constitutional implication[72]. That assessment is relevant in answering the second question posed in Lange.

Among the objectives of the Regulations set out in reg 1 are the ensuring of "a greater degree of safety of persons in hunting areas during the open season for duck in 1994" and the making of "amendments concerning the times and dates for the open and close seasons for game duck".

Regulation 2 identifies provisions under which the Regulations were made. One is s 87 of the Wildlife Act. Section 87 empowers the Governor in Council to make regulations for various purposes including "for preserving good order among hunters of wildlife". Any such regulation may be general in application or may be restricted by reference to such matters as a kind or species of wildlife, time, place, persons, equipment, hunting guns or circumstances, whether determined or ascertainable before or after the making of the regulation (s 87(2)).

Regulation 5 states:

"(1) A person must not enter into or upon any permitted hunting area at any time between the hours of -

(a) 5 pm on Friday, 18 March 1994 and 10.00 am on Saturday, 19 March 1994; or

(b) 5 pm on Saturday, 19 March 1994 and 10.00 am on Sunday, 20 March 1994.

Penalty: 10 penalty units (2) Sub-regulation (1) does not apply to a person who is the holder of a valid game licence authorised for the hunting or taking of game birds (including duck)."

The phrase "permitted hunting area" is so defined in reg 4 as to refer to the waters of certain areas. The meaning given to the phrase is as follows:

"(a) the waters of any State Game Reserve established under the Wildlife Act 1975, and the land within 5 metres of the water shoreline of those waters; and

(b) the waters of the hunting areas described in the Schedule and the land within 5 metres of the water shoreline of those waters".

Sections 14 and 15 of the Wildlife Act provide for the Director-General[73] to have the management and control of certain lands of the Crown which are to be known as State Wildlife Reserves. Section 15(2) provides for a further classification of State Wildlife Reserves to include State Game Reserves. The hunting areas referred to in par (b) of the definition of "permitted hunting area" include that of Lake Buloke in the Shire of Donald. The offences for which the plaintiff has been charged were allegedly committed there.

Regulation 5(2) lifts what otherwise would be the prohibition imposed by reg 5(1). It does so in respect of holders of "a valid game licence authorised for the hunting or taking of game birds (including duck)". What is a "game licence"?

Section 22A of the Wildlife Act creates an offence for the hunting, taking or destroying of any game without a game licence issued under the section. In s 3(1), "game licence" is defined as meaning a game licence issued under s 22A. That definition is carried into reg 5(2) of the Regulations by s 23 of the Interpretation of Legislation Act 1984 (Vic)[74].

To appreciate the significance of the particular periods referred to in reg 5(1), it is necessary to consider provisions made in respect of the "Open Season" by the Wildlife (Game) Regulations 1990 (Vic)[75]. In the Regulations these are identified as "the Principal Regulations". These also are expressed as being made under powers conferred by the Wildlife Act. The terms "close season" and "open season" are used in the Wildlife Act respectively to identify the period or periods in each year during which a particular species of game may or may not be taken or hunted. Regulation 9 of the Regulations redefined the open season so that it commenced in the early daylight hours of the third Saturday in March, which in 1994 was Saturday, 19 March. Thus, the temporal operation of the prohibitions imposed by reg 5 was directed to the first two days of the open season. The effect of reg 5 was to limit the class of entrants into or upon the waters of any permitted hunting area to the holders of a valid game licence authorised for the hunting or taking of game birds, including duck.

The plaintiff complains that the prohibitions imposed by reg 5 upon him and others who did not hold the requisite game licence inhibited their ability to pursue, or prevented or rendered unlawful their pursuit of, the purposes detailed in par 5(d) of the further amended statement of claim. These include their protesting various matters "by their physical presence, by the use of leaflets, posters, placards and the like, by [oral] statements, by attracting media attention, especially television coverage, of actual events occurring within the proclaimed area during the proclaimed period". The objects of protest were the Regulations, "the underlying policies of the Victorian Government related thereto", the activities and practices of game shooting generally, and the illegal shooting of protected species by game shooters. These were identified by the plaintiff as "the duck shooting issues" and we will use that term.

Other purposes specified in par 5(d) include the gathering of information and materials about the activities of duck shooters "within the proclaimed area during the proclaimed period" in order to speak publicly and protest about the duck shooting issues "from an informed and persuasive basis, and in order to ensure that the people of Victoria can form or exercise informed political judgments about the stance of the Victorian Government in continuing to support or permit duck shooting". The reference to television coverage of actual events occurring within the proclaimed area during the proclaimed period was expanded by the plaintiff's reference in par 5(d) to the ability to gain assistance in speaking and protesting about the duck shooting issues by being seen publicly rendering aid to or collecting injured game birds and protected species which shooters had shot illegally or "failed to despatch quickly or at all". Regulation 26 of the Principal Regulations requires a person who takes game which is alive when recovered to kill that game immediately.

It may be conceded that television coverage of actual events occurring within the permitted hunting areas during the periods specified in reg 5(1) would attract public attention to those protesting the duck shooting issues, even if it would portray or stimulate appeals to emotion rather than to reason. The appeal to reason cannot be said to be, or ever to have been, an essential ingredient of political communication or discussion. It must also be accepted that the constitutional freedom is not confined to verbal activity. We recognise that it may extend to conduct where that conduct is a means of communicating a message within the scope of the freedom.

The apprehended presence of persons hunting or taking game birds in the waters of the same permitted hunting area as those protesting that activity, by conduct seeking to attract television coverage, suggests the need for measures designed to provide a degree of safety to all persons in that area. That was a stated objective of the Regulations. One measure taken in the Regulations was to forbid a person at any time in the open season for duck in 1994 to approach, within a distance of less than five metres, a licence holder who was hunting or taking game birds in a permitted hunting area (reg 6). Another measure, directed specifically to the commencement of the open season, was reg 5. The prohibitions imposed by the Regulations were accompanied by criminal sanctions.

The Regulations exemplify a law which has the effect, if not the purpose, of curtailing to some degree the constitutional freedom. The attachment of a penalty is a significant matter in the assessment of the validity of such a law. But it is not necessarily fatal.

The Regulations do not have, as their direct operation, the denial of the exercise of the constitutional freedom in a significant respect. They may be contrasted with the legislation held invalid in ACTV[76]. This forbade the broadcasting during an election period of certain political advertisements or political information.

Nor is the legislation here of the same nature as the electoral laws considered in Langer v The Commonwealth[77] and Muldowney v South Australia[78]. There, the very curtailment of the constitutional freedom itself was supported as "reasonably capable of being viewed as appropriate and adapted to furthering the democratic process"[79].

On the other hand, the Regulations imposed no general prohibition or regulation of communication or discussion. Nor is there a likelihood that the prohibitions they did impose involved a significant curtailment of the constitutional freedom of political communication and discussion[80]. In particular, reg 5, under which the plaintiff has been prosecuted, imposed prohibitions which were strictly limited in place and time. The operation of reg 5 is long since spent. The purpose of reg 5 was to ensure a greater degree of safety of all persons in the waters of permitted hunting areas at the commencement of open season in 1994. Any impairment of the constitutional freedom was incidental to the achievement of that purpose.

In the present case, there was no greater curtailment of the constitutional freedom than was reasonably necessary to serve the public interest in the personal safety of citizens whilst they were in the waters of permitted hunting areas and the curtailment was reasonably capable of being seen as appropriate and adapted to the aim pursued in the Regulations. That aim itself was plainly within the regulation-making power conferred upon the Executive Government by the legislature in s 87 of the Wildlife Act.

The defendants succeed for these reasons and it is unnecessary to consider the additional grounds upon which they supported the demurrer.

The demurrer should be allowed. The hearing of the demurrer was significantly extended by submissions by the defendants, and interveners, upon those additional grounds. Leave to intervene was granted to certain media proprietors on the condition that each intervener bear the costs of the parties occasioned by its intervention on a party and party basis. In all the circumstances, this should be supplemented by an order that the plaintiff bear the defendants' costs of the demurrer, but limited to one day of the hearing.

GAUDRON J

The plaintiff, Laurence Nathan Levy, is actively involved in a campaign to stop recreational duck shooting. In particular, he is concerned to stop recreational duck shooting in Victoria. It is permissible to hunt ducks in that State in accordance with a game licence during open season[81]. In general terms, open season extends from the third Saturday of March until the end of May, or, sometimes, early June[82]. Apparently, most recreational duck shooting is done on the opening weekend of the season[83].

[125] Common Law Procedure Act 1852 (UK), s 80. See Chitty's Archbold's Practice of the Court of Queen's Bench 12th ed (1866), vol II at 926.
[126] O 26 r 5(1).
[127] Edwards v South Carolina 372 US 229(1963); Cox v Louisiana 379 US 536(1965).
[128] Tinker v Des Moines Independent Community School District 393 US 503(1969); cf Brown v Louisiana 383 US 131(1966); Hague v CIO 307 US 496(1939).
[129] The cases are most recently reviewed in Schenck v Pro-Choice Network of Western New York 137 L Ed 2d 1(1997).
[130] See Acts Amendment (Game Birds Protection) Act 1992 (WA); National Parks and Wildlife Amendment (Game Birds Protection) Act 1995 (NSW).
[131] See McGinty v Western Australia (1996) 186 CLR 140 at 169-170, 232-235.
[132] See for example Aroney, "The Gestative Propensity of Constitutional Implications" [Autumn 1997] Policy at 26; Cassimatis, "Theophanous - A Review of Recent Defamation Decisions" (1997) 5 Torts Law Journal 102; Twomey, "Dead Ducks and Endangered Political Communication - Levy v State of Victoria and Lange v Australian Broadcasting Corporation" (1997) 19 Sydney Law Review 76; Comment on Theophanous" in Huscroft, "David Lange and the Law of Defamation" [1997] New Zealand Law Journal 112; Williams, "Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform" (1996) 20 Melbourne University Law Review 848; Donaghue, "The Clamour of Silent Constitutional Principles" (1996) 24 Federal Law Review 133; Miller, "The End of Freedom, Method in Theophanous (1996) 1 Newcastle Law Review 39; Bronitt and Williams, "Political Freedom as an Outlaw: Republican Theory and Political Protest" (1996) 18 Adelaide Law Review 289; Bailey, "'Righting' the Constitution Without a Bill of Rights" (1995) 23 Federal Law Review 1; Doyle, "Common Law Rights and Democratic Rights" in Finn (ed) Essays on Law and Government (1995) vol 1 at 144. Zines, "A Judicially Created Bill of Rights?" (1994) 16 Sydney Law Review 166; Campbell, "Democracy, Human Rights and Positive Law" (1994) 16 Sydney Law Review 195; Richardson, "Constitutional Freedom of Political Speech in Defamation Law: Some Insights from a Utilitarian-Economic Perspective" (1994) 4 Torts Law Journal 242; Galligan, "Parliamentary Responsible Government and the Protection of Rights" (1993) 4 Public Law Review 100.
[133] (1994) 182 CLR 104.
[134] (1994) 182 CLR 211.
[135] (1992) 177 CLR 106.
[136] (1992) 177 CLR 1.
[137] Australian Constitution, ss 7, 9, 10, 15, 25, 29, 30, 31, 41, 51(xxxvii), 51(xxxviii), 95, 107, 108, 111, 123 and 124; cf Zines, The High Court and the Constitution, 4th ed (1997) at 390.
[138] Re Alberta Legislation [1938] 2 DLR 81 at 107 per Duff CJC and Davis J.
[139] cf Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106.
[140] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 142; see also at 168, 217; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 122; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 232, 257.
[141] Victorian Constitution, s 34. Like provision is made in s 26 in relation to the Legislative Council. See also McGinty v Western Australia (1996) 186 CLR 140 at 278-279, 284-285.
[142] Victorian Constitution, ss 16, 18.
[143] See for example Dixon, "The Common Law as an Ultimate Constitutional Foundation" (1957) 31 Australian Law Journal 240.
[144] Wade, "The Basis of Legal Sovereignty" [1955] Cambridge Law Journal 172 at 188; Wade, "Sovereignty - Revolution or Evolution?" (1996) 112 Law Quarterly Review 568 esp at 574-575; Forsyth, "Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review" (1996) 55 Cambridge Law Journal 122 at 138-139; Winterton, "Extra-Constitutional Notions in Australian Constitutional Law" (1986) 16 Federal Law Review 223 at 239; Laws, "Law and Democracy" [1995] Public Law 72 at 79; Allan, "The Limits of Parliamentary Sovereignty" [1985] Public Law 614 at 635; Ross, "Diluting Dicey" (1989) 6 Auckland University Law Journal 176 at 195.
[145] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 138; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 47; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 172-173; McGinty v Western Australia (1996) 186 CLR 140 at 201.
[146] See for example McGinty v Western Australia (1996) 186 CLR 140 at 237 per McHugh J; at 274-275 per Gummow J; Zines, The High Court and the Constitution, 4th ed (1997) at 395-396; Aroney, "The Gestative Propensity of Constitutional Implications" [Autumn 1997] Policy 26 at 28 points out that at the time when the Australian Constitution was drafted, most women and Aboriginals were denied the right to vote in national elections.
[147] See Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 9-10.
[148] 5 metres.
[149] Regulation 5 prohibited people without a licence from entering into the specified hunting areas between 5 p.m. on Friday 18 March 1994 and 10 a.m. on Saturday 19 March 1994 and between 5 p.m. on Saturday 19 March 1994 and 10 a.m. on Sunday 20 March 1994.
[150] Reg 5(2).
[151] Reg 7.
[152] Contained in reg 1(a). At the time of the making of the regulations, guideline 6 of the Guidelines issued under s 11 of the Subordinate Legislation Act 1962 (Vic) relevantly provided that a statutory rule, such as the regulations, "must clearly set out as part of the text ... the objectives of the rule". This explains the inclusion of the purposes in reg 1.
[153] Victoria, Department of Conservation and Natural Resources, Regulatory Impact Statement - Wildlife (Game) (Human Safety) Regulations 1996 (November 1995).
[154] Reg 4.
[155] s 18(2).
[156] Wildlife Act 1975 (Vic); Conservation, Forests and Lands Act 1987 (Vic).
[157] Interpretation of Legislation Act 1984 (Vic), s 22.
[158] Contrast also the position in Canada where the Canadian Charter of Rights and Freedoms explicitly introduced rights different from the pre-existing common law. Manning v Hill (1995) 126 DLR (4th) 129 at 156per Cory J for the Court; cf Switzman v Elbling (1957) 7 DLR (2d) 337; Re Alberta Legislation [1938] 2 DLR 81; Retail, Wholesale & Department Store Union v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174 at 184-185.
[159] 460 US 37; 74 L Ed 2d 794 (1983).
[160] White J (Burger CJ, Blackmun, Rehnquist and O'Connor JJ concurring); Brennan J (Marshall, Powell and Stevens JJ concurring) in dissent.
[161] There has been some criticism of the "public forum" analysis as stultifying the venues for free speech; see International Society for Krishna Consciousness Inc v Lee 505 US 672 at 710(1992) per Souter J (Blackmun and Stevens JJ concurring) in dissent.
[162] 460 US 37 at 45 (1983), citing Carey v Brown 447 US 455 at 461 (1980).
[163] 460 US 37 at 45 (1983).
[164] 460 US 37 at 46 (1983).
[165] 460 US 37 at 46 (1983).
[166] 460 US 37 at 46 (1983) (citations deleted) referring to United States Postal Service v Council of Greenburgh Civic Associations 453 US 114 at 129-130 (1981); Greer v Spock 424 US 828 at 836(1976); Adderley v Florida 385 US 39 at 47 (1966).
[167] 473 US 788 (1985).
[168] The opinion of the Court was given by O'Connor J (Burger CJ, White and Rehnquist JJ concurring). Dissenting opinions were written by Blackmun J (joined by Brennan J) and by Stevens J.
[169] 473 US 788 at 810 (1985).
[170] 473 US 788 at 819 (1985).
[171] 473 US 788 at 829 (1985) (citations deleted).
[172] 420 US 546 at 563-564 (1975).
[173] 393 US 503 at 509-510 (1969).
[174] Members of the City Council of the City of Los Angeles v Taxpayers for Vincent 466 US 789 (1984).
[175] International Society for Krishna Consciousness Inc v Lee 505 US 672 (1992).
[176] 137 L Ed 2d 1 (1997).
[177] cf Madsen v Women's Health Center Inc 512 US 753 (1994).
[178] 485 US 312 at 322 (1988), quoted in 137 L Ed 2d 1 at 26-27 (1997) (internal quotation marks omitted); see also Madsen v Women's Health Center Inc 512 US 753 at 765 (1994).
[179] 137 L Ed 2d 1 at 20-21 (1997) per Rehnquist CJ for the Court.
[180] 137 L Ed 2d 1 at 31 (1997) per Scalia J (Kennedy and Thomas JJ concurring).
[181] Hague v CIO 307 US 496 (1939); Collin v Smith 578 F 2d 1197 (1978); Feiner v New York 340 US 315 (1951); United States v Rainbow Family 695 F Supp 294 (1988); cf International Society for Krishna Consciousness Inc v Lee 505 US 672 at 693-695 (1992) per Kennedy J (Blackmun, Stevens and Souter JJ concurring).
[182] cf Perry Education Association v Perry Local Educators' Association 460 US 37 at 46 (1983).
[183] Australian Constitution ss 7, 9, 10, 15, 25, 29, 30, 31, 41, 51(xxxvii), 51(xxxviii), 95, 107, 108, 111, 123 and 124; Twomey, "Dead Ducks and Endangered Political Communication - Levy v State of Victoria and Lange v Australian Broadcasting Corporation" (1997) 19 Sydney Law Review 76 at 82-83.
[184] Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 122; but see now Lange v Australian Broadcasting Corporation unreported, High Court of Australia, 8 July 1997 at 22-23.
[185] Victorian Constitution, s 16.
[186] R v Burah (1878) 3 App Cas 889 at 904; McCawley v R [1920] AC 691; Union Steamship Co of Australia v King (1988) 166 CLR 1 at 9; cf ICAC v Cornwall (1993) 38 NSWLR 207 at 253.
[187] The entrenchment may be open to question in light of s 18(4)(a) of the Victorian Constitution.
[188] 18 & 19 Vict, c 55, 1855 (Imp).
[189] The implied restraints upon State Parliaments have been considered in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 233, 236, 257; see also Muldowney v South Australia (1996) 186 CLR 352 at 367, 373-374; McGinty v Western Australia (1996) 186 CLR 140 at 176-177, 298-299; Lange v Australian Broadcasting Corporation unreported, High Court of Australia, 8 July 1997.
[190] See discussion in Kable v DPP (NSW) (1996) 70 ALJR 814 at 821-824; 138 ALR 577 at 587-590; BLF v Minister Industrial Relations (1986) 7 NSWLR 372 at 402-405; British Railways Board v Pickin [1974] AC 765 at 782. But cf Fraser v State Services Commission [1984] 1 NZLR 116 at 121; Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 at 398; New Zealand Drivers' Association v New Zealand Road Carriers [1982] 1 NZLR 374 at 390.
[191] Defendants' written submissions dated 18 July 1996 at A.2.
[192] Unreported, High Court of Australia, 8 July 1997 at 28, quoting McHugh J in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 264.
[193] Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Lange v Australian Broadcasting Corporation unreported, High Court of Australia, 8 July 1997 at 23.
[194] The suggested constitutional freedom, in the Australian sense, is better described as "an immunity consequent on a limitation of legislative power": Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 150 per Brennan J. See Lange v Australian Broadcasting Corporation unreported, High Court of Australia, 8 July 1997 at 14-15.
[195] Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 51, 76-77, 94-95; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 142-144, 159, 169, 217-218, 235; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 299-300, 324-325, 336-337, 387; Langer v The Commonwealth (1997) 186 CLR 302 at 334; Muldowney v South Australia (1996) 186 CLR 352 at 366, 374, 375-376; Lange v Australian Broadcasting Corporation unreported, High Court of Australia, 8 July 1997 at 16, 24.
[196] International Covenant on Civil and Political Rights, Arts 17 and 19 (protection of privacy, reputation and freedom of expression); cf Bollinger, Images of a Free Press (1991) at 34-35.
[197] (1992) 177 CLR 106 at 143.
[198] By reference to Cox Broadcasting Corp v Cohn 420 US 469 at 491 (1975).
[199] Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 50 per Brennan J. As Dawson J explained in Leask v The Commonwealth (1996) 70 ALJR 995 at 1003; 140 ALR 1 at 13, the words "appropriate" and "adapted" appear to have their origin in the opinion of Marshall CJ in McCulloch v Maryland 17 US 159 at 206 (1819).
[200] Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 95 per Gaudron J.
[201] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 143-144 per Mason CJ; see also at 169 per Deane and Toohey JJ and Cunliffe v The Commonwealth (1994) 182 CLR 272 at 299-300 per Mason CJ.
[202] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 157 per Brennan J.
[203] Leask v The Commonwealth (1996) 70 ALJR 995 at 1003-1007; 140 ALR 1 at 13-18 per Dawson J and cases there cited.
[204] Lee, "Proportionality in Australian Constitutional Adjudication" in Lindell (ed), Future Directions in Australian Constitutional Law (1994) at 126. See also State of NSW v Macquarie Bank Ltd (1992) 30 NSWLR 307 at 321-324.
[205] The Commonwealth v Tasmania (The Tasmanian Dam Case)(1983) 158 CLR 1 at 260; Richardson v Forestry Commission (1988) 164 CLR 261 at 311-312; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 28-29; but cf at 88; Leask v The Commonwealth (1996) 70 ALJR 995 at 1000-1001, 1006-1007, 1011-1013, 1018, 1024; 140 ALR 1 at 8-9, 16-17, 24-26, 33, 41.
[206] Borrowing notions developed by the European Court of Human Rights; see for example The Observer and the Guardian v United Kingdom (1991) 14 EHRR 153 at 178, cited by Brennan J in Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 159.
[207] Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 156; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 325; Leask v The Commonwealth (1996) 70 ALJR 995 at 1001; 140 ALR 1 at 10.
[208] cf Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 191 per Dawson J; see also Cunliffe v The Commonwealth (1994) 182 CLR 272 at 363.
[209] International Society for Krishna Consciousness Inc v Lee 505 US 672 (1992).
[210] Members of the City Council of the City of Los Angeles v Taxpayers for Vincent 466 US 789 (1984).
[211] As Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 demonstrate.
[212] Unreported, High Court of Australia, 8 July 1997 at 24. Note that at 16-17 the Court acknowledged the different formulae which had been adopted within the Court in relation to the second step but, without resolving the differences, used the "appropriate and adapted" formula.
[213] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 143 per Mason CJ.
[214] (1962) 108 CLR 130 at 142.
[215] (1962) 108 CLR 130 at 142.
[216] (1962) 108 CLR 130 at 152 per Windeyer J.
[217] Bond v The Commonwealth (1903) 1 CLR 13.
[218] (1930) 44 CLR 319 at 331.
[219] Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 252.
[220] See Breen v Williams (1994) 35 NSWLR 522 at 532-533.
[221] See for example National Australia Bank v Hokit (1996) 39 NSWLR 377 at 380-382; see also Re Boulton; Ex parte State of Victoria (1994) 126 ALR 620 at 626-628.